Interview: Justin Driver

Justin Driver is a professor at the University of Chicago Law School. After college, he received a master’s degree in education from Duke. He then attended law school and clerked for Justices Stephen Breyer and Sandra Day O’Connor. We mainly discussed his new book, “The Schoolhouse Gate,” which is about students’ constitutional rights. What could be better for a High School SCOTUS blog?

What kind of a teenager were you, and what were your interests?

I attended public schools in Washington, D.C. through the ninth grade, and then starting in tenth grade I went to an all-boys Catholic high school. I definitely enjoyed school, but, certainly in my early teenage years, I also had a substantial mischievous streak. In The Schoolhouse Gate, I mention getting suspended in the ninth grade for drinking on an overnight field trip. I’m struggling with how I’m going to tell my own two young daughters about why I thought that was a good idea; I’m glad they won’t be reading my book any time soon. [laughs]

One of the reasons I mention getting suspended in the book is to draw attention to zero-tolerance policies. I consider myself incredibly fortunate that I got suspended for only three days, whereas if I had done the same activity during the era of zero-tolerance I would have been suspended or expelled for the remainder of the year.

Who were your role models in high school?

Justice Thurgood Marshall was a major role model. At the beginning of my time in high school, Justice Marshall was still on the Supreme Court. I didn’t know much about law at that time, but I revered Justice Marshall; in large part, of course, for his litigation with the NAACP Legal Defense and Education Fund. 

Thurgood Marshall seems like an interesting role model to have as a high schooler.

In the D.C. public schools that I attended, teachers emphasized black history month and black heroes generally — throughout the year, not only in February. And so I must have encountered Thurgood Marshall early on as a figure who improved the nation, as teachers instilled that these were American heroes that every American should know and venerate.

A couple minutes ago, you mentioned that you were suspended in ninth grade for drinking on a school trip. I’m guessing you didn’t feel lucky at the time for being suspended. When in your life did you realize that it was sort of fortunate?

When I was suspended, I definitely did not think, “What a great stroke of fortune.” To the contrary, I was devastated. I was unaware of a Supreme Court decision that I discuss in the book called Goss v. Lopez, which afforded due process rights for students prior to suspensions. Justice Powell wrote a dissent asserting that, for most students, getting suspended is a welcome holiday from school. For me, being suspended felt like a decidedly unwelcome holiday. It felt like I was being banished from my school.

Zero-tolerance disciplinary policies were typically not in place at that time. It’s only through researching this book that I realized how close in time my young and irresponsible behavior preceded the rise of zero-tolerance, which would have thrown my life off course, perhaps irrevocably. School discipline has, regrettably, become a lot more severe and punitive since the 1980s.

And that’s one of the other things I discovered when writing the book. Principal Joe Clark of Paterson, New Jersey, who is the real-life person depicted by Morgan Freeman in the movie, “Lean on Me,” had a reputation for being an incredibly harsh, punitive principal. In Clark’s memoir from the 1980s, he recounts announcing a new code of suspensions for bringing weapons to school, drinking, and drugs. Surprisingly, though, Clark’s punishments were extremely mild compared to those that are routinely distributed to students today. As a default matter, Clark’s suspensions were very brief in time – only ten days for even serious infractions. Clark’s penalties illuminate how dramatically school discipline has intensified over the last three decades.

What other books were especially helpful when you were researching “The SchoolhouseGate”?

A few books spring to mind. Richard Kluger’s “Simple Justice” is a magnificent work. It’s a rarebook that takes a legal topic and achieves something close to literature. Kluger does just that by using Brown v. Board of Education to tell the larger story of the quest for black legal equality in America.

Another book that was important to me is one that I was lucky enough to be a research assistant on as an undergrad at Brown University. Professor James T. Patterson hired me to work on his book called “Brown v. Board of Education: A Civil Rights Milestone and Its Troubled Legacy.” That experience was formative because I now ask my research assistants to perform similar tasks to those that I performed in 1997. Professor Patterson would often have me go to the stacks where old magazines resided to uncover how people at the time viewed these legal conflicts. Judge Louis Pollak, before he ascended to the federal bench, once said, “Life magazine is America’s most widely read law review.” That is an incisive comment about the way that poppular publications can reflect, but sometimes also create, legal meaning in society.

Finally, in terms of form, Professor Randall Kennedy’s Race, Crime, and the Law influenced me deeply. Kennedy’s book manages to speak both to legal audiences and nonlegal audiences, combining the historical with the normative. That maneuver is often attempted, but seldom executed as successfully. I was fortunate enough to take multiple classes with Kennedy as a law student at Harvard.

Do you trace some of your interest in education law to researching Professor Patterson’s book, or were you already interested beforehand?

I was already interested in education, but my work for Professor Patterson definitely inspired me to contemplate law as an important part of education. My senior thesis at Brown examined public schools in Milwaukee, and I’d also decided to pursue a master’s degree in education.

After teaching high school through a program at Duke University, where I got my masters of arts in teaching, I went to Oxford and studied the San Antonio Independent School District v. Rodriguez decision. I’m confident that crafting my proposal to examine that case owes a heavy debt to my work with Professor Patterson. His book examined Brown, and I aimed to examine underexplored legal decisions that had major consequences for the United States. The Rodriguez decision, which evaluated the methods by which schools are funded, seemed to be a prime candidate for exploration.

For people who aren’t familiar with Rodriguez, what’s the gist of the case?

In Rodriguez, litigants in San Antonio challenged the way that Texas funded its public schools, which was overwhelmingly done through property taxes. The resulting system meant that students in one destitute neighborhood in San Antonio, Edgewood, received a lot less money per pupil than students in Alamo Heights — a wealthy neighborhood in San Antonio. Demetrio Rodriguez claimed that this scheme violated the Equal Protection Clause, and the Court rejected that argument.

I was fascinated to discover that, when the lawsuit was initially filed in the District Court, many people believed that Rodriguez was destined to prevail. My predecessor at the University of Chicago, Professor Philip Kurland, wrote an article in the 1960s saying in effect, “It’s only a matter of time before the Supreme Court invalidates the method by which the overwhelming majority of public schools are financed in the country.” Kurland did not relish that prospect, but he deemed it almost inevitable. Things did not, however, quite turn out that way. In a 5-4 decision, the Court upheld Texas’s method of school financing.

Today, I wonder whether there’s even a single vote on the current Supreme Court that would side with Rodriguez. One notable coda to Rodriguez is that litigants turned from federal courts toward state courts and made claims under state constitutions. Many of those claims have found receptive audiences in state supreme courts as they interpret the state constitutions, including in Texas. 

If you had to explain the thesis of your book to a room of high schoolers, what would you say?

Students possess a whole host of constitutional rights in public schools that are different than those they have in, say, public parks. One of the goals of the book is to try to explain to students and teachers the origins of those rights, the contours of those rights, and then also to offer ideas about how those legal doctrines should change going forward. The second goal of the book is to enter larger debates about the Supreme Court’s role in American society, and I use the education field as a prism for examining some of these larger questions. These days, many law professors view the Supreme Court as a frail institution — one that is incapable of issuing decisions that prompt major changes. I believe that the Supreme Court has a much greater capacity for changing society than the conventional view suggests.

The subtitle of your book is “Public Education, The Supreme Court and the Battle for the American Mind.” I’m curious about the battle part. Do you understand that as the justices’ clashing interpretations, or maybe the Supreme Court on one side and the American people on the other?

Large cultural conflicts at a national level often end up playing themselves out within the walls of the Supreme Court’s marble palace. To take one example, consider the Tinker v. Des Moines Independent Community School District case involving student speech. In 1965, students in Des Moines, Iowa, wanted to wear black armbands protesting the Vietnam War. School officials got wind of this plan and told the students that they couldn’t return to school until they took off their armbands. Educators contended that this was an incredibly emotional issue; a Des Moines graduate had died in Vietnam, and these protests occurred long before opposition to the Vietnam War was in any way popular. And so the school’s concern was not made up out of thin air.

The Supreme Court of the United States held that the school officials’ actions were unconstitutional, saying, “It can hardly be argued that students shed their constitutional rights… at the schoolhouse gate.” That was an important intervention; however, it was not universally embraced. Justice Hugo Black wrote a vehement dissent. He read it aloud from the bench and noted that he completely disavowed every word of the Supreme Court’s decision. Justice Black feared that society was in effect going to hell in a handbasket; that things were spiraling out of control with the protest movements of the 1960s.

Thus, the cultural battle that divided the nation in the 1960s ended up also dividing the Supreme Court. Many citizens with more traditional views thought, “Students are there to be seen and not heard; they should not articulate their views on urgent issues of the day. That’s simply not what school is for.” That was the view that Justice Black enunciated. The Supreme Court countered that students have an important part to play in society, and that a vital part of the educational environment is students educating one another — often in informal ways. So that’s what the word “battle” intends to conjure.

I should add that although most people today would think that Tinker was correctly decided, the decision seems to have been unpopular at the time. Had the Supreme Court simply followed polling results, more people would have thought that schools should have been permitted to silence and suppress student speech, even on the Vietnam War. Tinker vividly represents the Court’s counter-majoritarian capabilities.

In Chapter Two, you then say that Tinker’s on “life support” because it has three competing approaches for regulating student speech. And reasonable fear of substantial disruption, the most lax one, has become the dominant test. How optimistic are you that the other, less restrictive approaches will become more accepted?

This is one area where I hope that it may be possible to cobble together a coalition of liberals and the libertarian-inflected vision of constitutional law that is ascendant in some conservative circles. I greatly admire Tinker; that represented a major breakthrough. But I also believe that the Court should have built more on the decision than it has done to date.

One problem with Tinker is that can readily be understood to codify a heckler’s veto. The rule that emerges from Tinker holds that if there’s a reasonable fear of a substantial disruption about student speech, then it’s permissible for the school to suppress it. But that allows what Professor Harry Kalven famously termed the heckler’s veto, by which he meant: if sensitive listeners object to certain speech, those objections ought not be permitted to silence otherwise legitimate speech.

When I was a law clerk at the Supreme Court for Justice Breyer in 2006-2007, the Supreme Court decided a case that lawyers refer to as “BONG HiTS 4 JESUS.” The actual name of the case is Morse v. Frederick. Joseph Frederick, a high school senior in Juneau, Alaska, was holding a banner at a parade that read “BONG HiTS 4 JESUS,” and the principal marched across the street, ripped it out of his hand, and suspended him. Chief Justice Roberts’s opinion for the Court adopted an incredibly unusual approach by legitimizing viewpoint discrimination.

Frederick deemed it permissible for principals to punish students for speech if they reasonably understand the speech to promote illicit drug use. In the First Amendment realm, viewpoint discrimination is usually anathema. But here, the Court said it’s fine, even though debates about the illegality of marijuana were percolating at that time and have only accelerated since. Justice Stevens wrote a powerful dissent reminiscing about Prohibition and the way that something that’s illegal today can become legal tomorrow; that dissent seems more prescient with every passing year. I hope that the Supreme Court will recommit itself to defending the First Amendment in schools.

In multiple cases throughout the book, you seem to agree with Justice Stevens. What is it about his interpretive approach — in education cases, at least — that appeals to you?

Justice Stevens can be understood as the inheritor of Justice Jackson’s legacy in West Virginia State Board of Education v. Barnette. In Barnette, Justice Jackson wrote an opinion invalidating the efforts of schools to expel students for refusing to salute the American flag. Jehovah’s Witnesses viewed saluting the flag as a violation of their religious faith. Jackson’s opinion in Barnette observed that courts have a special responsibility to vindicate students’ constitutional rights lest schools strangle the free mind at its source and teach youth to discount constitutional principles as mere platitudes. I’m paraphrasing there, but it’s pretty close.

Similarly, Justice Stevens has consistently argued that it’s vital to recognize constitutional rights within schools. Stevens made these arguments in a Fourth Amendment case called T.L.O.  v. New Jersey, and also in Morse v. Frederick. While Justice Stevens has offered a robust defense of students’ rights, one of the book’s themes is that in recent decades, the rest of the Court has often missed the mark in this area. It is no accident that Justice Stevens is writing in dissent in both T.L.O. and Frederick rather than in the majority, as Justice Jackson was in Barnette

A couple of times, you included specific quotes and conversations from the justices’ internal deliberations. How did these details inform your views of certain cases?

I made a decision relatively early on in writing the book that I was going to focus my attention on the Supreme Court as a regulator of public schools. And so the drama, such as it is in my book, is overwhelmingly on the public school part of the story — and less so on what happened when Justice Brennan walked down to Justice Marshall’s office, or whatever. I omitted most material along those lines because I thought that having lots of palace intrigue would distract from my primary focus.

I do note these comments a couple of times along the lines you suggest. In addition to citing “Closed Chambers,” I reference Chief Justice Warren’s efforts to bring about unanimity in Brown v. Board of Education. But as a general matter, I focus my attention on the Supreme Court and its regulation of public schools rather than what happened behind the scenes.

I actually haven’t read “Closed Chambers” yet. I got it for my birthday, so I’ll definitely check it out at some point.

You should read it! And you should also read “The Brethren,” by the way.

I have read that! It’s awesome. 

With “The Brethren,” it is remarkable that the Supreme Court Justices were some of the main sources. One of my book’s aims is to offer revisionist accounts of major figures and events in Supreme Court history. I offer a revisionist account of Brown, but I also suggest that Chief Justice Burger may be due for a revision. “The Brethren” was essential in crystallizing this vision of Burger as being incompetent and unintelligent. And it seems to me that he was actually quite effective at delaying a decision on de facto segregation until he had colleagues who viewed desegregation as he did. So it’s quite possible that Burger was less than straightforward with his colleagues, and he may have even been duplicitous, but that’s not necessarily incompatible with being effective at realizing one’s jurisprudential agenda. Both items can be true at the same time, and that’s something I want readers to draw from the book.

That was fascinating. You’re making me want to reread “The Brethren”… and get started on “Simple Justice,” too.

“Simple Justice” is a major achievement. In The Schoolhouse Gate, I aim to keep alive some of the techniques that Kluger used. Too often, in my view, law professors analyze legal phenomena in excessively abstract ways. When we do that, we overlook the very real sacrifices that litigants undertake. In the school context, students and their families often challenged not only school officials, but their entire communities.

The Tinker family had red paint splattered on their front door because some believed that only people with communist sympathies would oppose the Vietnam War. Lindsay Earls, a high school student in Oklahoma, challenged her school’s suspicionless drug testing regime. Earls’s neighbors asserted that she was a druggie and that she had lost sight of her Christian faith. These are criticisms that carried real bite in her region of Oklahoma. I aim to revive the tradition that found its highest form in Kluger by chronicling the enormous personal sacrifices that frequently are required when students attempt to vindicate their constitutional rights.

I was fortunate enough to be a law clerk for Justice O’Connor, and I had her in mind when I was writing this book. When we would discuss cases, she’d often want to understand the backstories. She cared about individual litigants and how they illuminated some larger constitutional problems. In addition to paying homage to Kluger, I like to think that I’m also honoring Justice O’Connor.

What is the most common misunderstanding people have about students’ rights?

The most common misunderstanding is that corporal punishment has been abolished from public schools. The single issue in the book that I feel most passionately about is the ongoing persistence of corporal punishment. I write about the Ingraham v. Wright case from 1977, where the Court had an opportunity to rein in corporal punishment through the Eighth Amendment’s Cruel and Unusual Punishment Clause. The Supreme Court, in a 5-4 decision, declined to do so.

At the time, only two states had abolished corporal punishment: Massachusetts and your home state of New Jersey. Today, most states have eliminated corporal punishment, but it still persists. A handful of states, all located in the Deep South, are responsible for the lion’s share of instances of corporal punishment.

This is another area in which it’s at least plausible that libertarians and liberals will evince some skepticism of the state’s authority to beat students. Public school students are the last group of people who can be hit by the state for failing to follow an order but not posing any safety threat.

Before the Ingraham decision in 1977, the courts of appeals abolished corporal punishments in prisons. And many observers thought there’s no way that if it’s impermissible to strike prisoners, that it would be permissible to strike students. But that’s not how it turned out. Now here we are, forty-one years later, and the Supreme Court still refuses to get involved. I hope that the Supreme Court will soon address this issue because the jurisdictions that retain corporal punishment seem unlikely to eliminate it on their own any time soon.

That was one of the more surprising things I learned. It speaks to my New Jersey bubble that I didn’t know it still existed. Was that the most surprising thing you learned in the course of researching this book, or were you already aware of its existence?

No, that is the single most surprising and distressing thing that I encountered during my research. In fact, when I teach this case — I teach a class called “The Constitution Goes to School” at the University of Chicago Law School — some of my students, even though I say this practice continues, have difficulty grasping that students are still being struck with wooden paddles in the United States today. They come up to me after and say, “Yeah, but not really, right?” It’s like, “Yes. Really.” As I say, that’s the single greatest hope that I have with this book: to try to generate some interest and hopefully outrage at the ongoing existence of corporal punishment.

But I don’t think that you are, by any stretch of the imagination, alone in being unaware of corporal punishment. Indeed, even in the states that retain corporal punishment, it’s generally found in the rural districts rather than the urban districts. But out of sight should not, of course, mean out of mind.

How has your law school class, “The Constitution Goes to School,” helped you develop ideas and arguments for your book?

It’s crucial that I’m able to teach the subjects that I’m most excited about at any particular moment. And the opportunity to test out ideas, with excellent students who have been in public schools more recently than I have, is invaluable. And not only because they’re younger, but also because some of them have taught in public schools, many through Teach for America. So those former teachers have been all over the country, including in areas that are somewhat off the grid. They can suggest that an idea of mine is unsound, or unrealistic, or off-base in some way for how things actually happen in practice. That’s been an invaluable resource.

Before you set off on your law school path, you were interested in teaching high schoolers, right?

That’s right. I was the beneficiary of having some excellent teachers in public school in Washington, D.C. who encouraged me, and they made a tremendous positive difference in my life. I can still remember my third grade teacher, who took my parents aside at one point — I’d written some short story — and I used the word “clinked.” My teacher was like, “Oh my gosh, Justin is so precocious; we hadn’t even gotten to onomatopoeia yet!” [laughs] That sort of enthusiasm for my early writing efforts made a big difference for me.

I can also remember a teacher that I had at Alice Deal Junior High School named Ms. Wickersham. She showed up, and she’d just graduated from Yale College. That was an incredibly important moment for me, because the idea that actual mortal human beings attended Ivy League institutions was something I didn’t totally appreciate. Just simply by her example, it made a positive difference. I was attracted by the prospect of being able to do for somebody else what Ms. Wickersham did for me.

In addition, I don’t believe that I ever had a black male teacher in all of my time in Washington, D.C. public schools. I can remember an occasional substitute teacher who was a black male, but I don’t believe that I ever had a black male teacher for more than a few days. So that absence also partly motivated my thinking.

Eventually, I got certified to teach public school at Duke. During that year, I was teaching US history and civics. It was really enjoyable for me to attend graduate courses in history and then also to student-teach at Jordan High School in Durham, North Carolina. While I was in Durham, I ended up receiving the Marshall Scholarship. At that point, I had never left North America. It seemed like too good an opportunity to let pass. I went to Oxford and I studied constitutional law, and that experience set me on this path.

If you could make all nine Supreme Court justices read one chapter of your book, which would it be and why?

The first thing that springs to mind is my chapter on freedom of speech. The story I tell there is of Tinker being a momentous decision, but the Court has consistently refused to build upon it — and indeed perhaps can even be seen as retreating. I encourage the justices to recapture the animating spirit of Tinker.

The modern Supreme Court could plausibly become more receptive to vindicating students’ speech rights. There are several major issues that the justices need to address, including off-campus student speech in the age of the internet. I hope the Court will demonstrate renewed interest in this area.

Which Supreme Court opinion would you like to read that hasn’t been written yet?

The issue of transgender students and access to restrooms is on the horizon. The Court granted certiorari on the Gavin Grimm case out of the Fourth Circuit, and then decided to remand it after the Trump administration revised the Obama administration’s guidance on these issues. In the aftermath, some lower courts have been using not Title IX, but the Equal Protection Clause to analyze these claims. It would be surprising if the Supreme Court in another two to three years had not issued a decision in this area. That decision would be only the latest instance where the Court has taken a high-profile, deeply contested issue and decided it in the context of schooling.

Other interviews conducted by Anna Salvatore: former Solicitor General Neal Katyal, court artist Art Lien, New York Times Supreme Court correspondent Adam Liptak, UCI Law Professor Leah Litman, litigant extraordinaire Fane Lozman. former Court writer Linda Greenhouse,  NPR reporter Carrie Johnson, Fix the Court Director Gabe Roth, IU Maurer Law Professor Ian Samuel, and Lawfare editor-in-chief Benjamin Wittes. 

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